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In recent years, the FISC has sometimes acted more like a secret Supreme Court, issuing lengthy legal opinions, re-interpreting constitutional protections and building a new body of law on surveillance, privacy and intelligence. Yet it operates like no other court in America — hearing only from one side and keeping its opinions confidential.
The FISC's broad rulings deserve both public scrutiny and an adversarial process in which someone represents the public's privacy interests. James Robertson, a retired federal judge who sat on the surveillance court, told a presidential oversight panel last week that judges need to hear both sides because "judging is choosing between adversaries."
Supporters of the process point out that when prosecutors seek a wiretap on a criminal suspect, the judge hears only from the government. But it's absurd to argue that's the same as approving the collection of tens of millions of phone records.
Finding a public representative for a secret system wouldn't be easy. But there are ways. Sen. Richard Blumenthal, D-Conn., and the ACLU's Jameel Jaffer suggest some sort of public advocate who would be given a security clearance.
It also wouldn't be difficult to scrub legal opinions of classified information and release the redacted versions. Many members of Congress are pushing measures to require disclosure.
Stopping terrorism requires tradeoffs, including some secrecy and perhaps even some intrusiveness. But it shouldn't require giving up the transparency and adversarial court system that have served America so well for so long.
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